Some of the Americans, and those the most patriotic and conservative, thought that Great Britain had jurisdiction to ascertain and execute the law of nations for the common purposes, and in the exercise of that jurisdiction to control, by its decrees and regulations, the action of individuals in the Colonies. This was to regard Great Britain and America as consolidated for the common purposes so as to form what may be called a Justiciary Union. They were content, so long as Great Britain acted on the theory that she was the Justiciar of the British-American Union for the common purposes, and maintained a competent tribunal for determining what were common and what local purposes according to the principles of the law of nature and of nations, that she should finally determine the limits of her own jurisdiction as the Justiciar State of the Union. While I do not mean to say that Great Britain ever recognized that the American Colonies were free states and that she was only a Justiciar State with power of final decision according to the law of nature and of nations over the whole British-American Union for common purposes, yet I think it may not be wholly incorrect to say that from 1700 to 1763, the King and the Parliament of Great Britain, advised by the Committee of the Privy Council for Plantation Affairs assisted by the Board of Commissioners for Trade and Plantations, really acted as the Supreme Administrative Tribunal for applying the principles of the law of nature and of nations in the decision of the questions common to all the free states of a de facto British-American Union and as a necessary incident thereto, decided the limits of the jurisdiction of Great Britain as the Justiciar State of this de facto British-American Union.
In this view, the actions of the Americans show the evolution of a continuous theory and policy, and the application of a single system of principles,—a system which was based upon free statehood, just connection and union. The British-American Union of 1763 was a Union of States under the State of Great Britain as Justiciar, that state having power to dispose of and make all rules and regulations respecting the connected and united free states, needful to protect and preserve the connection and union, according to the principles of the law of nature and of nations. The dissolution of this Union, caused by the violation by the State of Great Britain of its duties as Justiciar State, gave a great impetus to the extreme states' rights party, and the next connection formed,—that of 1778 under the Articles of Confederation,—was not a Union, the Common Government (the Congress) being merely a Chief Executive. Such a connection proving to be so slight as to be little more than a fiction, they formed, under the Constitution of 1787, the only other kind of a union which appears to be practicable, namely, a union under a common government which was a Chief Legislature for all the connected and united states by their voluntary grant, and whose powers were expressly limited, by limitation in the grant, to the common purposes of the whole connection and union of free states.
The power exercised by a Justiciar State in a Justiciary Union, the Fathers recognized as being neither strictly legislative, nor strictly executive, nor strictly judicial, but a power compounded of all these three powers. They considered that it was to be exercised after investigation by judicial methods, both of the facts and principles and of the public sentiment; that the just public sentiment of the free states connected and united with the Justiciar State was to be executed in local matters and was to be considered in the determination of the common affairs; and that the action of the Justiciar State was to result, after proper hearing of the free states concerned, in regulations which were to have the force of supreme law in each of the connected and united free states respectively. This kind of power, which the Fathers called "the superintending power" or "the disposing power" under the law of nature and of nations, and which may be called, using an expression now coming into use, "the power of final decision," being neither legislative nor executive, but more nearly executive than legislative, the more conservative among them considered might be exercised, consistently with the principles of the law of nature and of nations, either by the Legislative Assembly of the Justiciar State or by its Chief Executive. This right of both the Legislative Assembly and of the Chief Executive to exercise the powers of the Justiciar State under the law of nature and of nations is, I believe, also recognized by our Constitution, as I have elsewhere attempted to show.
The Fathers further considered, if my understanding of their belief is correct, that, inasmuch as both the Legislative Assembly and the Chief Executive of the Justiciar State, in exercising its power over the free states connected and united with it, and throughout the Justiciary Union, have as their function the ascertainment of facts and the application of the principles of the law of nature and of nations to those facts, they ought to exercise this function by the advice of a permanent Administrative Tribunal, properly constituted so as to advise them intelligently and wisely. As I have said above, the Revolutionary statesmen considered, as it would seem, that the Committee of the Privy Council for Plantation Affairs, assisted by the Board of Commissioners for Trade and Plantations, had, up to 1763, constituted such an Administrative Tribunal. They considered also, it would seem, that neither the Chief Executive nor the Legislative Assembly was bound by the action of this Administrative Tribunal, its action being wholly advisory, but that the Chief Executive was bound to take its advice before making his dispositions; and that the Chief Executive, when acting as an Administrative Tribunal for disposing and regulating the common affairs of the free states of the Justiciary Union, after taking the advice of this permanent Administrative Tribunal, was a tribunal of first instance. They further considered, as it would seem, that the Legislative Assembly, when acting as an Administrative Tribunal for adjudicating and regulating the common affairs of the Justiciary Union, was a tribunal of final instance, whose dispositions and regulations superseded those of the Chief Executive in so far as they conflicted with them. It was, as I understand it, because the situation of affairs in the British-American Union from 1700 to 1763 conformed to the theoretical ideas of the Americans as to the true nature of the relationship between the American Free States and the State of Great Britain, that they were ready to return to that situation at all times between 1763 and 1778. In the latter year, the spirit of American nationality manifested itself so strongly that all thought of political connection with Great Britain was abandoned.
The practical result of this theory is, that the Chief Executive of a Justiciar State may exercise the power of the Justiciary State, after investigation and adjudication and after taking the advice of a properly constituted permanent Administrative Tribunal given after investigation and upon adjudication, and that such action may take the form of regulations concerning the common affairs of the free states of the Justiciary Union (and even concerning the local affairs of the respective free states, when regulations concerning local affairs are reasonably and justly necessary, as incidental to the regulation of the common affairs, in order to make the regulation of the common affairs effective), and that such regulations may extend to the regulation of the conduct of individuals, and that the Legislative Assembly of the Justiciar State may exercise the same power, to the same extent and that its dispositions and regulations supersede the dispositions and regulations of the Chief Executive in so far as they conflict with them. This conclusion seems correct, if we accept as correct the premise of a universal and common law of nature and of nations, based on human equality arising from creation, of a universal and unalienable human right of life, liberty and the pursuit of happiness, of a universal right of agency-government of a kind necessary to secure these rights, of a universal right of free statehood of all communities within reasonable territorial limits suitable for the formation and application of just local public sentiment, as the necessary means to secure the right to agency-government, of a universal right of free states to be connected or united with other free states on just principles of the law of nature and of nations, of a universal conditional right of free states to be self governing free states if capable of self government of a universal conditional right of self governing free states to be independent free states, if capable of independence, and of a universal conditional right of independent free states to be justiciar states of justiciary unions of free states if capable of judgeship and able to make their dispositions and regulations effective.
Of course there must be conditions of transition where the relations between free states which would normally be in union, or between detached portions of what would normally be a unitary state, temporarily assume a form which is partly one of union or merger, and partly of dependency. The justification of all such forms of relationship must, it would seem, be found in the fundamental right which every independent state, whether a justiciar state or not, has to the preservation of its existence and its leadership or judgeship—that is, in the right of self-preservation, which, when necessary to be invoked, overrules all other rights. On this theory must, it would seem, be explained the relations between the American Union and its Territories between Germany and Alsace-Lorraine, and between England and Ireland. On this theory of self-preservation, also, must, it would seem, be explained the permanent relationship of dependency which exists between the District of Columbia and the American Union—such dependency being necessary to the preservation of the life of the Union.
Thus, if our interpretation of the Declaration is correct, there was evolved in it, out of the original proposition that "all men are created equal," a complete system of the philosophy of government, directly the opposite of the system of Europe which was based on the proposition that 'all men are created unequal,' or that "some are created equal and some unequal," and the Declaration of Independence was a declaration of an American System, as opposed to the European System. If this interpretation be correct, it was to preserve this American System that President Washington advised against 'political connection' with Europe, and that President Jefferson warned America against "entangling alliances," it was this American System which President Monroe and President Adams declared to have extended itself throughout this hemisphere; it was this American System to preserve which the Civil War was fought and to the maintenance of which President Lincoln rededicated the American people on the field of Gettysburg, it is this American System which President Roosevelt has upheld against the forces in our midst, which on the one side have, by the wrongful use of accumulations of wealth, sought to establish a doctrine of inequality based on the possession of property, and on the other side, by denying the rightfulness of all accumulations of wealth, have sought to establish a doctrine that the inequalities of physical wealth and intellectual ability are to be destroyed, instead of being employed, by those endowed with great wealth or great ability, as the common wealth, in helping each and all to secure their unalienable rights of life, liberty and the pursuit of happiness and thus to realize the divine right of equality, it is this American System which the American Congress under the leadership of President McKinley and President Roosevelt, has actually applied in the determination of our relations with the Insular regions, so that they are to-day free states de facto connected and united with the American Union as the Justiciar State, and so that it needs only our recognition to convert them into free states de jure and to bring into legal existence a Greater American Union of Free States of which our present Union will be the Supreme Justiciary Head, determining the questions arising out of the relationship not by edict founded on will and force, but by decision carefully made in each case after ascertaining the facts and the principles of the law of nature and of nations which are properly applicable.
If the principles and the corresponding terms adopted by the Revolutionary Fathers were adopted by them as of universal significance, and if they were right, must we not apply these principles and these terms to-day, when the position of America is reversed and she stands as a great and independent State in relationship with distant communities which are so circumstanced that they can never participate on equal terms in the institution and operation of her government? Must not this law of nature and of nations according to the American System, which for us underlies all other law and which is the Spirit of the Constitution itself, determine for us whether or not we shall continue to use the terms 'colony,' or "dependence," or "empire"?
If we must admit as Americans a universal right of free statehood, is it proper to call Hawaii, Porto Rico, the Philippines or Guam 'colonies'? They are inhabited and we do not propose to colonize them. If they are free states in union with the American Union as the Justiciar State and form with it a Greater American Union, is it proper to call them "dependencies," which may imply a direct legislative power over them? And if the American Union is only the Justiciar State of the whole Greater American Union of Free States, composed of the American Union and its Territories and Insular regions, with power of final decision for the common purposes according to the law of nature and of nations why speak of this as "Empire," which may imply absolute power and a denial that there exists a universal law of nature and of nations protecting alike the rights of persons communities states and nations?